"A majority taken collectively is only an individual, whose opinions, and frequently whose interests, are opposed to those of another individual, who is styled a minority. If it be admitted that a man possessing absolute power may misuse that power wronging his adversaries, why should not a majority be liable to the same reproach?" - Tocqueville, Democracy in America

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Friday, February 06, 2009

The Perak Crisis - an unsolicited legal opinion

The disagreement between the Terengganu palace and the BN's leadership over the choice of the Menteri Besar last year prompted Malik Imtiaz to write Crisis In Trengganu? What crisis? on his blog, Disquiet. I had taken a differing view than that which was taken by Imtiaz in that article. Basically I was, and still am, of the opinion that the role of the Rulers in the political arena should be approached with a degree of circumspection. I posted 2 comments to that post and it would not be out of place to reproduce a part of my comments here:

"The notion that the Rulers are a part of check and balance mechanism to the wide powers of the executives is to me, wishful at best. The reality is the Rulers are not part of the administration of the country. The check and balance mechanism embedded into our system (and every democracy with a constitutional monarch) only consists of the executive, legislative and of course, the judiciary (in some Scandinavian countries, an ombudsman is an integral part as well).....To adopt a literal approach would vest a certain level of absolute power in the Ruler where such power does not exist in the first place. Can we imagine a situation where the Ruler may decide mid-term to change an MB because he thinks that MB does not command the confidence of the majority anymore? We are now riding the populist wave of a political reform yet unseen before. It is a result of deep rooted anger against the BN government. But lets not allow our emotion to colour our judgement by creating, or allowing to create, a dangerous precedent, a precedent which we all may live to regret later."

Article 16 of the Perak Constitution says that the Sultan shall appoint the Executive Council ("EC"). He must first appoint as Menteri Besar from the members of the Legislative Assembly who "in his judgment is likely to command the confidence of the majority of the members of the Assembly." Then on the advice of the MB, the Sultan shall appoint other members of the EC.

We stop at this juncture to consider this provision. The Sultan did not have to ensure that the potential MB does command the confidence of the majority. The word "likely" in the above provision gives a certain level of subjectivity to the whole process. And quite how the Sultan was to perform that function is not spelt out.

Article 16 (6) is very important. It says:

"If the MB ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council."

If we could now look at this provision closely. There is no subjectivity here. It does not say, for example, "if the Sultan is of the opinion that the MB ceases to command the confidence of the Assembly", or "if it is likely that the MB has ceased to command the confidence of the Assembly". It says clearly that "if the MB ceases to command". That means this provision kicks in only and only if, it could be factually proven that the MB has ceased to command the confidence of the Legislative Assembly. In other word, the Sultan is not imbued with the power to make his own subjective judgment over this fact and matter . For this provision to operate, it must be established as a fact that the MB has ceased to command the confidence of the Assembly.

How is that fact established then? In countries practising the Westminster typed democracy, this fact is established with a vote of no confidence on the floor of the Assembly.

Next to be examined is Article 16 (7). It says:

"Subject to Clause (6) a member of the Executive Council other than the MB shall hold office at His Royal Highness' pleasure, but any member of the Council may at any time resign his office."

It is of paramount importance to note that only the MB does not hold office at the pleasure of the Sultan. From a literal reading of this article, it is clear that the Sultan may therefore sack any member of the Executive Council but not the MB.

Can the Sultan Ask the MB to Resign?

With all due respect to HRH the Sultan of Perak, I don't think the Sultan has the power to ask for the resignation of the MB. It has been argued elsewhere that the provision of the Interpretation Act 1948 would give the power to the Sultan to dismiss the MB. While I concede that section 94 of that Act gives the power to dismiss in every instant where a power to appoint exists, it must be remembered that the Interpretation Act does not apply "where there is something in the subject or context inconsistent with or repugnant to the application" of the Interpretation Act.

Where is the context inconsistent with the application of the Interpretation Act here? The answer lies with Article 16 (7) above. It is clear that the MB does not hold office at the pleasure of the Sultan as opposed to the other members of the Assembly. Had it been intended that the Sultan should have the power to dismiss the MB as well as the other members of the Executive Council, Article 16 (7) would not have made such a glaring and clear exception so as to expressly preclude the MB from the operation of that Article.

Excersise of the Sultan's Powers

There are 2 broad categories of powers which the Sultan is vested with. The first type are powers which the Sultan shall act in accordance with the advice of the Executive Council. There is no discretionary power here. Whenever the Sultan is advised to exercise these powers, the Sultan has no choice but to exercise that power in accordance with the advice given.

Secondly there are powers which the Sultan may exercise in his discretion. These powers include:

power to appoint the MB

power to withhold his consent to a request for the dissolution of the Assembly.

Here lies the problem. The MB has requested the Sultan to dissolve the Assembly but the Sultan has refused to do so and had asked the MB to resign instead.

Was the Sultan Right?

A case law, decided by our Court in 1966 bears important resemblance to the crisis in Perak now. In Stephen Kalong Ningkan v. Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187, the Governor of Sarawak received a letter signed by 21 members of the Council Negri (equivalent to the Legislative Assembly) expressing no confidence in Stephen Kalong Ningkan as the Chief Minister. The Governor then asked Stephen to resign. Stephen refused to resign. The Governor then declared that Stephen and all the members of the Supreme Council (equivalent to the Executive Council) as having ceased to hold office. A new Chief Minister was then appointed by the Governor. The case ended up in the High Court where among others, a declaration that the purported dismissal of Stephen as the Chief Minister was ultra vires the Constitution and was therefore null and void.

The Sarawak Constitution contain provisions which are almost identical to the provisions of the Perak Constitution.

Article 6 (3) provides:

"The Governor shall appoint an Chief Minister a member of the Council Negri who in his judgment in likely to command the confidence of a majority of the members of the Council Negri and shall appoint the other members in accordance with the advice of the Chief Minister from among the members of the Council Negri."

By Article 7, it is provided as follows:

"(1) If the Chief Minister ceases to command the confidence of a majority of the members of the Council Negri, then, unless at his request the Governor dissolves the Council Negri, the Chief Minister shall tender the resignation of the members of the Supreme Council.

(2) A member of the Supreme Council may at any time resign his office by writing under his hand addressed to the Governor, and a member of the Supreme Council other than the Chief Minister shall also vacate his office if his appointment thereto in revoked by the Governor acting in accordance with the advice of the Chief Minister.

(3) Subject to cll (1) and (2), a member of the Supreme Council other than the Chief Minister shall hold office at the Governor's pleasure."

Notice the almost identical provisions. It has to be noted that the Sarawak Constitution also provides, (as do the Perak Constitution) that the Chief Minister does not hold office at the pleasure of the Governor.

The Court held as follows:

i) for Article 7 (1) to kick in, there must be a vote of no confidence from the floor of the Assembly. Mere letters signed by the members of the Assembly expressing no confidence to the Governor was not sufficient.

ii) the Governor had no power to dismiss the Chief Minister under the Constitution.

iii) the purported dismissal of the CM was then ultra vires the Sarawak state Constitution.

What is even more important is the learned Judge's observation in respect of the exercise by the Governor of his discretionary power to appoint a CM and to withhold his consent when there is a request to dissolve the Assembly. This is what His Lordship said:

"A lot has been said about the duty and powers and discretion of the Governor. His paramount duty is to "act in accordance with the advice of the Supreme Council or of a member thereof acting under the general authority of the Council". (Article 10(1). There are two occasions when the Governor has a discretion, that is, when he can act without, or even contrary to, the advice of the Supreme Council. Those occasions are in the performance of the following functions -

(a) the appointment of a Chief Minister;

(b) the withholding of consent to a request for the dissolution of the Council Negri. (Article 10 (2) ).

As regards (a), nobody could be so foolish as to suggest that a Governor could appoint a second Chief Minister while there was still one in office. As regards (b), this probably has in mind a situation of splinter parties, as has been the case in France, when a general election could not be expected to show an overall majority for any one party. In Sarawak, it seems to me that a Chief Minister may advise a dissolution, even though he has not as yet lost the confidence of Council Negri. In such circumstances, the Governor's refusal to dissolve might be conventionally unconstitutional, although not illegal."

This is still good law as this decision has never been overturned by a higher Court.

Conclusion

With the greatest of respect to HRH the Sultan of Perak, it would appear that the above case law does not lend support to the actions which have so far been taken in Perak.

I would like to end this post by quoting R H Hickling from his excellent book, "Malaysian Law" (Professional Law Books Publishers 1988), where he said:

"The advent of constitutional government in Malaysia marked the beginning of the end for the prerogatives of the Rulers. While assiduously reserving these prerogatives by express savings in the state constitutions, the very act of defining rights and powers restrict them. With the advent of formal constitutions government in Johor in 1895, limitations on arbitrary rules set in, and the pattern was set for progress to the modern concept of constitutional government: that is to say, not merely government in accordance with the provisions of the constitution, but government in accordance with the wishes of the elected representatives of the people."

39 comments:

Thank you for that clarifying dissertation. The past week will go down and be recorded as a mark in our history. As Dominoes that were set in motion by ambitious parties and the abrogation of responsibilities by others. A sad day for Malaysia.

So, His Majesty's refusal to dissolve the Assembly, might be conventionally unconstitutional, although not illegal.

That's reassuring, isnt it? At least, His Majesty's legal qualifications had not gone down the drain, as yet...

All these while, when I read of all the allegations about our PM in waiting's involvemnet with Altantuya, I could not believe it... But having witnessed the blatant disregard for public opinion and law & order, all things are possible where this man is concerned.

Sir, thanks for your opinion which served as a clear explanation. I think the events unfolded starting on the wrong foot from the beginning. With all due respect to HRH, it appears he made a ruling on the matter of whether the resignation is considered valid or not in the first place without waiting for the matter to be heard in courts and proceeded to make further ruling on the MB without the required factual rejection i.e a motion of no confidence towards the present MB by the elected reps. Its weird because technically and legally (at least to my untrained mind it appears so)Nizar is still MB and yet they've sworn in another MB.

Art, thanks for the excellent discourse.I would like to seek a clarification from you regarding the the exact wording of Article 16(6) of the Perak constitution. In your present discourse, Article 16(6) is quoted as ".....the majority of the members of the Legislative Assembly, ...."

This quotation differs from that contained in Mentri Besar Nizar's letter of appeal to the Sultan. In Nizar's letter, this article reads: ".....the majority of the Legislative Assembly,....". The word "members" was missing.

Grateful if you could enlighten as to which quotation is correct. Thanks.

"Subject to Clause (6) a member of the Executive Council OTHER THAN THE MB shall hold office at His Royal Highness' pleasure, but any member of the Council may at any time resign his office."

It is of paramount importance to note that ONLY THE MB DOES NOT HOLD OFFICE AT THE PLEASUTRE OF THE SULTAN. From a literal reading of this article, it is clear that the SULTAN MAY THEREFORE SACK ANY MEMBER OF THE EXECUTIVE COUNCIL BUT NOT THE MB."

You have hit with the right strength & straight to the point plus well supported by your cited precedent and authority.

Please work hand in hand as a team with Karpal Singh, Malik Imtiaz Sarwar..to fight for the oppressed RAKYAT here in Perak.

I am sure with the divine & legal wisdom that you guys possess and with Lord Blessing, you guys will surely set another highest authority in our Land to shed some light pertaining to the constitutional crisis that we are facing now !

Excellent analysis supported by facts and case study. If you are legally right and there is no other clause that say any different, I think there has been a grave error on the part of the Sultan. And since the Sultan is well versed with the law being the former Lord President, where does such a revelation place him?

Has royalty and the status thereon somewhat blinded him and make him decide against his better judgement?

Now this irritating discomfort that I have been having about the HRH Sultan Azlan Shah's actions has been put to rest.

For a lot of us lay people, we can only feel the injustice as well as the error of the decision and actions of the Sultan without a clue as to how we might put these feelings to rest. Your explanations here are like the anti-dote for the poison that was working inside.

Kim Quek has extracted the following from both the Federal as well as the State constitutions respectively: (http://thedandelions.wordpress.com/2009/02/06/urgent-appeal-perak-constitution-crisis-from-misinterpretation-of-words/)

Federal constitution: Article 43 (4): If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.

Perak state constitution: Artikel XVI(6): If the Mentri Besar ceases to command the confidence of the majority of the Legislative Assembly, then unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.

He argues that the Sultan would have been correct if it were the Prime Minister in determining if he had lost the confidence of the majority of the members of the House of Representatives.

Whereas, in the State's constitution, it refers to the Majority of the Legislative Assembly.

You on the other hand, having checked with Imtiaz confirm that the legislation refers to "members of the Assembly", but you fail to mention which legislation. State or Federal that you are quoting?

Following Kim Quek's argument, if you are right in taking "members of the Legislative Assembly", then the Sultan may have adequately satisfied himself that the Menteri Besar did not have the confidence of the majority of the members of the assembly as he could determine this by himself by interviewing each one of them.

On the other hand if Kim Quek's version is right, then obviously without the Legislative Assembly coming together there cannot have been a determination of whether the Menteri Besar did not have the confidence of the Assembly.

I was citing the Perak Constitution and not the Federal Constitution. Both Imtiaz's and my version of the Perak State Consti contain the word "members". It really does not matter anyway. Because the relevant article imposes an objective test, ie, it must be factually proven that the MB does not anymore command the confidence of the majority. Stepehn Kalong Ningkan's case has interpreted that to mean a vote of no confidence on the floor of the Assembly. It is a well reasoned judgment. It even distinguishes the Privy Council decision in Adegbenro v Akintola.In Adegbenro's case, the Privy Council opined that lost of confidence may be shown by letters or some other way. But in that case, the provision of the Nigerian constitution under review says "if it appears" that the PM does not command the confidence of the assembly. That phrase gives a degree of subjectivity to the Ruler. But that phrase is not in the Perak Constitution.Therefore, only a vote of no confidence could be relied by the Sultan in Perak.

Thanks Art.I have read many times that the ruler does not have the power to fire, but this article and the article by Kim Quek explained clearly that the ruler indeed has not power to do that.I hope MB Nizar and Raja Aziz will include you and Imtiaz in the team. Like MB Nizar said, fight until the last drop of blood.

My commendation to you & Malik Imtiaz with your great effort on the clarification of this "Grey Area".

Sad to see this great nation Malaysia administered by the British Tuans, then handed over to the Malaysian TUANS under Bapa Malaysia Tunku Abdul Rahman Putra & his Malaysian cabinet of TRUE TUANS managing the system of Wesminster style Democracy & with the Rule of Law in 1957, getting "Hijacked & Betrayed" by the "Elite UMNO Ketetuanan BEGGARS" in 1969.

For 40 years, instead if teaching their own kind to "Learn to catch their own FISH", they took the easy way out to maintain their "False" sense of Security & Power by using the "Ketetuanan (BEGGAR)" policy - you vote UMNO, we give you "Fish" & the rot set in to what it is today & the beat goes on....!

For the others, "Either you are with us.....or else....you will be "MIA or Eliminated", period !This great nation, its assets & its Anak Bangsa Malaysia have been abused for the last 40 years by these "Moronic Idiots & their Goons" through "Gutter Politics" & the "Law of the Jungle".

Through "Devine" intervention, UMNO, its Leaders & their Lapdogs are now "Destroying" each other with their "Power, Greed & Henious Crimes".

A very thorough and well written and properly argued constitutional argument. I am of the opinion that our Learned and esteemed Sultan is well aware of the implications of this issue and just wants to teach Najib a lesson in trying to trample democracy by using money politics. The issue of money politics in UMNO and Najib in particular has been proven by Che Det's statements and by the very admission of Tengku Rithaudeen of unbridled money politics at teh top level and the very need for MACC to intervene.When our beloved Sultan asked Nizar to Sabar, it does convey a hidden message.I suppose this is the final nail on Najib's coffin. His very rash act has created a very serious rift in UMNO. I don't think that many of the right thinking UMNO and BN MP's agree with such rash action of Najib and his group. The very fact that our much esteemed Tengku Razaleigh came out strongly in this matter does indicate that all is not well in UMNO and that serious reforms with UMNO is imminent. In fact this matter was also hinted by the shrewd Che Det when he too advised Najib not to rush things. May Allah Almighty guide us all into the correct path of wisdom and righteousness.

Kudos on a well ARTiculated legal opinion. I am amazed at the Stephen Kalong's case being almost all fours with the current situation yet completely ignored by the 'expert' commentators that have been quoted in the media. There is a precedent in the matter. One would assume in a situation such as this, where 2 of the frogs are facing corruption charges and all 3 frogs were kept in hiding for more than a week, it would be reason enough for the Sultan to err on the side of caution and call for the dissolution of the assembly and a state election.

If the situation remains, I hope and pray that 2 of the 3 frogs decide to jump back in. Then PR can run to the palace and ask to be re-sworn in.

Dont know if you managed to read RPK's take on it. It is myopic and pro-royalty. If you do see him, please ask, at least PR we know that they are arguing. We cant agree all the time. Unlike BN with they hand holding singing Malaysia Truly Asia to hide the real rot and corruption within. RPK seems to suggest that the Sultan had no choice but the revert to BN. However, I would anytime take a bunch of squabbling greenhorns which have a perception of honesty who trip over each other to be the hero rather than openly corrupt politicians that only care for their own pockets who got there without proper mandate.(Sorry to use the space here for the rant as one cannot critise RPK the Messiah in Malaysia Today without being chastised. Blind faith indeed....

with all the goings-on in perak. shelley's 'Ozymandias' comes to mind.our politicans and others involved would do well to keep it in mind.

quoting wiki: "The central theme of Ozymandias is mankind's hubris. In fourteen short lines, Shelley condenses the history of not only Ozymandias' rise, peak, and fall, but also that of an entire civilization. Shelley suggests all works of humankind - and humans themselves - are transitory. Whether a Pharaoh or peasant, we are mortal."

OZYMANDIAS

I met a traveller from an antique landWho said: Two vast and trunkless legs of stoneStand in the desert. Near them on the sand,Half sunk, a shatter'd visage lies, whose frownAnd wrinkled lip and sneer of cold commandTell that its sculptor well those passions readWhich yet survive, stamp'd on these lifeless things,The hand that mock'd them and the heart that fed.And on the pedestal these words appear:"My name is Ozymandias, king of kings:Look on my works, ye Mighty, and despair!"Nothing beside remains: round the decayOf that colossal wreck, boundless and bare,The lone and level sands stretch far away.

most of all, the sultan has a wide knowledge on legal matters, he make a move after satisfied that his move base on laws. opposition also knows that they can form a government base on MP who jumps from BN. that why Anwar tried hard for the great jump on 16 september 2008. if not why opposition wants to that. unlucky their owned people jumped. now totally different story, opposition himself against the jump. this is not pakatan rakyat but pakatan of hypocrites

But there is one issue you have probably not answered. HRH has the discretion not to accept the MB's advise to dissolve the Assembly. At that point the MB has no choice but to tender the resignation of his EC as per the provisions of the State constitution. The very fact that he sought an audience of and requested HRH's permission to dissolve the Assembly at the point of the defections implied that he did not command the confidence of the majority. Logically HRH concluded that he did not command the confidence of the majority.

Also at that point the PR MB should have called on the speaker to convene an emergency session of the Assembly for a vote of confidence. The PR MB did not do that even!

At the same time the opposing BN group took advantage of the situation and sought the Sultan's permission to form the new Government by showing that they commanded the confidence of the majority (leaving out the issue of the morality of the majority!). Can you fault them then?

Though this is " an unsolicited legal opinion" but I would say this is a "Renown analysis of the Constitutional Law" ! Hope our current CJ-Dato' Zaki read this "unsolicited legal opinion" as his research & revision before he apply the Constituional law to solve the current Perak constitutional crisis !

It seems that you never mentioned in your article about the case of Datuk Amir Kahar Mustapha v. Tun Mohd Said Keruak. Justice Datuk Abdul Kadir has explained in his judgment when he distinguished this case with the case of Stephen Kalong Ningkan as below: “It is clear that the reasons for His Lordship (Justice Harley) differing in his view from the decision of the Privy Council in Adegbenro v Akintola was because of the five distinguishing features and circumstances appearing in that case. As to the first distinguishing feature and circumstance, it does not happen in this case (Kitingan case). ... In this case the feature and circumstance are the same as found in the Nigerian case in that ... In this case, from the petition (which was incidentally telecast live on television the day before Pairin tendered his resignation), the 30 members not only said they no longer had confidence in Pairin as the chief minister but they also requested the first defendant to convene the assembly and to direct Pairin to table a motion of confidence. However, the assembly was not convened to enable the action to be taken. In addition to that, Pairin himself in his press statement stated he resigned because the ruling party, ie PBS of which he is the leader, no longer had the majority support of the assemblymen, for owing to the defection of the members of his party, the position was reversed with the BN having the majority, and thus paving the way for the BN to form the next government.”....In the circumstances, Stephen Kalong Ningkan’s case must be distinguished, being a decision based on its own facts and circumstances. The hard fact in that case (Ningkan) was that the alleged loss of confidence was highly suspect. There was a top secret representation made by persons outside the Council Negri which on the fact of it did not disclose that the representors were the majority of members in the Council Negri. Also, the fact represented was suspicious in the sense that the letter was not signed by all persons listed in the letter and even in respect of those who signed, one of them was represented only by a ‘chop’ It was that reason the learned judge (Justice Harley) said at page 193 ‘Men who put their names to a ‘top secret’ letter may well hesitate to vote publicly in support of their private views ... Whereas in the present case, the issue does not arise. The chief minister resigned on his own accord and the reason for the resignation was sufficiently given in his press statement and in the ‘explanation’ given in the Borneo Mail on 11 May 1994 giving his interpretation of the matter.”

There are opinions that a more relevant case to refer to the situation in Perak is Datuk Amir Kahar's case compare to Stephen Kalong Ningkan' case.

I did not mention the Pairin's case as I think it is clearly distinguishable from the Stephen case. I also did not mention Adigbenro v Akintola case, a decision by the Privy Council arising from a Nigerian case. As I was targetting readership from laymen and larpersons, I had wanted to keep it simple and straight forward.

The Pairin's case is clearly idstinguishable from the Stephen's case. You will note that although the vote of confidence did not come from the floor of the assembly, Pairin accepted the fact that he did not have the confidence of the majority anymore. He in fact voluntarily tendered his resignation. The fact that he had lost the confidence of the majority of the assembly was not in dispute.

Now, if we transposed that to the present situation in Perak, I don't think the factual matrix of the two situation fit at all. Article 16 (6) does not permit subjectivity and as such it is my opinion that that article is not operative until and unless the loss of confidence is clearly established as a fact.

Thank you for your comment. I have made compilation of discussion about this issue & just post it in my blog. You can read it (in Malay) at: http://mizico.blogspot.com/2009/02/perbincangan-tentang-isu-perlantikan.html

Lord willing, when PR take over as Government in due time, the best candidate to be "Law Minister" is Art harun ; Malik Imtiaz Sarwar as "Attorney General"; and Zaid Ibrahim as Foreign Affair Minister...our country need intellectual human being like you guys to clean up the thrash BN-goons left behind.

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About Me

Art Harun believes that he is a failed government experiment, abandoned and left alone to roam the streets after all remedial efforts yielded no positive result. He calls himself a non-governmental organism, practices law for a living and tries very hard to play guitar, sing, race cars and write some stuffs to stay alive.